Element of a New Fisheries Act - Discussion Document

ALLOCATION TOOLS

BACKGROUND

The creation of an allocation instrument is a key legislative step that would help bring stability to the existing shares (allocations) of coastal commercial fleets, Aboriginal fishers and the recreational fishing sector.

Commercial fishers, in particular, have described the process - under which allocation decisions are made at the discretion of the Minister - as "unstable" and "unpredictable". However, groups within the coastal fisheries have also indicated over the past 12 years that they want the Minister to retain ultimate authority over access and allocation.

The Minister retains full authority to decide access and allocation in the coastal fishery, and the Act provides a tool for making allocations more stable, building on the stabilization efforts in previous years. It authorizes the Minister to establish fixed shares for a fleet or group of commercial, recreational or Aboriginal fishers - whereas at present, an allocation is a policy decision with no legal force. It also specifies the process for changing shares and the over-arching considerations that will govern allocation decisions in the future.

In order to help bring stability to allocations a new Act:

• Sets out management principles and access and allocation considerations in the statute;
• Empowers the Minister to establish allocations for up to 15 years;
• Makes allocations to a group, not an individual: an allocation is made to a class of licence or to a defined fishing zone, for example;
• Provides for making, amending or cancelling an allocation without notice, in exigent circumstances; and
• Empowers the Minister to create advisory panels for a variety of purposes, including holding public consultations and developin recommendations on access and allocations.

ACCESS AND ALLOCATION CONSIDERATIONS

Although the Minister takes into account many factors in his decisions today, the weight to be given to most of those factors is not specifically set out in the Act.

The new Act includes a provision that sets out the principles which the Minister must take into account and the factors he/she may take into account when establishing policies for the issuance of licences and when making allocations.

These principles provide a framework within which the Minister would make decisions.

The Minister is required to take into account the need to conserve and protect fish and fish habitat, compliance with the Act by fishers in the fisheries they prosecute and the importance to fishers of secure access to the fishery and of allocation stability.

The same provision includes an enumeration of other considerations which may be taken into account by the Minister and factored into any decision. This list of other considerations is not exhaustive and includes: fairness to individuals, between communities and between regions, fishers' adjacency to the fishery and their historical participation in the fishery, best use of the resource, and maintaining public access to the fishery. The Minister may also take into consideration any other information he deems relevant.

Through these changes, Parliament has created a more transparent system in which the Minister must exercise his powers, within parameters set by Parliament in the Act itself.

ALLOCATION ORDERS

The new Act includes a new instrument that would allow the Minister to allocate shares of fish that can be fished by groups or communities in fisheries under DFO management. At present, the Minister's licensing policies and allocation powers are not mentioned in the Act; access rules and allocations are policy decisions, which, by their nature, are subject to change.

The Minister retains the authority to determine access and to make allocations wherever DFO manages the fishery. However, these decisions are made within the parameters of a clear set of criteria and a process set out in the Act.

By making an allocation, the Minister fixes the shares of a particular species to be fished by a particular fleet, group of commercial, recreational or Aboriginal fishers or by a community.

Formalizing the allocation process should provide greater stability to the fishery and greater certainty to licence holders, groups or communities as the shares of fish they are authorized to fish will be fixed for a specified period. Where an allocation is fixed for several years, except for conservation reasons, there would be no need to revisit the sharing formula of the allocations on an annual basis.

In the previous Act there was no statutory provision governing the process of fixing allocations. In the proposal under consideration, the Minister has to comply with the process set out in the Act for making, modifying or cancelling an allocation instrument.

A new Act allows an allocation to have a term of up to 15 years. A future Minister is not prevented from re-opening his predecessor's allocation decision - but any Minister who does so would be required to follow the statutory process and to consider the allocation considerations in the Act, before the Minister could make, amend or cancel an allocation. This includes a requirement for the Minister to publish, in a manner he/she considers appropriate, a notice of the Minister's intention to make, amend or cancel the allocation.

The Minister retains the ability to make, amend or cancel an allocation order without publishing a notice or referring to an advisory panel if the Minister considers that exigent circumstances justify doing so. For example, this covers a situation where an allocation must be made, amended, or cancelled following a court decision.

The Minister and the licensing officer have to take all reasonable steps to give effect to an allocation. This means that the allocation guides the Minister and his/her Department in developing fishing rules and fishing plans. The licensing officer has to take all reasonable steps to give effect to the provisions of the allocation instrument when he/she issues the fishing licences and attaches appropriate conditions.

It would be clear that the allocation instrument does not confer any rights to the fleet, group or community to which the allocation applies. The Minister's allocation could not be the basis for a claim for damages by the members of the fleet, group or community to which the allocation relates. It should be clear that the allocation instrument does not create rights, liabilities or restrictions that a court can define or enforce.

The making of an allocation by the Minister does not limit the Minister's powers as they relate to the conservation or protection of fish or fish habitat. Thus, notwithstanding the existence of an allocation, the Minister would be able to take any measure, including the making of a fisheries management order to close a fishery, if he/she considers it necessary to do so for the conservation or protection of fish or fish habitat.

FISHERIES MANAGEMENT ORDERS

The new Act includes an authority to allow the Minister and designated provincial or territorial authorities (where those governments manage the fishery) to make a fisheries management order. This tool allows the Minister or his/her designate to set fishing quotas, limits on the size of fish that may be harvested and close times for fish and marine plants.

Close times, fish size and weight limits, and fishing quotas remain essential to the proper management of the fisheries. These requirements often need to be modified on very short notice as a result of a change in the status of fish stocks caused, among other things, by unexpected increases in fishing effort, changes in spawning cycles, weather changes (air and water), and environmental factors. A fisheries management order would allow the Minister or the designate to quickly open and close certain fisheries during specified periods, impose size and weight limits for the species being allowed to be fished and to control the harvesting of marine plants.

This tool recreates, in a much more efficient form, the existing power to issue Variation Orders, currently granted to DFO Regional Directors General under section 6 of the Fishery (General) Regulations; and to designated provincial or territorial fisheries managers (in freshwater fisheries managed by them).

With respect to fish, the fisheries management orders prohibit:

• the catching and retaining of fish in quantities that exceed the maximum number allowed by the order (e.g., daily or seasonal quotas in the recreational fishery);
• catching fish that are smaller or larger (by weight or length) than the limits set out in the order (size limits - another pillar of fisheries management);
• fishing for specified species during certain periods (close times).

With respect to marine plants, the orders prohibit the harvesting of marine plants during specified periods (close times).

The current Variation Orders require literally hundreds of pages of Schedules to the regulations - especially the federal fisheries regulations that apply to recreational fisheries managed by the provinces, where every individual lake or river to which a Variation Order may apply must be named. It is estimated that the replacement of this cumbersome system with fisheries management orders allows the current 2000 pages of federal fisheries regulations to be cut to 300 pages.

COMPLIANCE WITH FISHERIES MANAGEMENT ORDERS

It is a requirement that every person to whom the fisheries management order applies to comply with its provisions. Failure to comply with this requirement is an offence under the Act. A person who fails to comply with a provision of a fisheries management order is be subject to prosecution or administrative sanction procedures (if a Fisheries Tribunal is established). However, the penalty for failing to comply with a fisheries management order does not include imprisonment.

NOTICE OF FISHERIES MANAGEMENT ORDERS

There is a requirement to provide notice to persons affected or likely to be affected by a fisheries management order.

A person charged with failing to comply with a fisheries management order would have a defence to the charge if he/she can demonstrate that he/she did not receive a notice of a fisheries management order. The defence would be successfully argued unless the Crown can demonstrate that reasonable steps had been taken to bring the order to the attention of the person affected by it. This provision is consistent with similar requirements in the Statutory Instruments Act.

This provision replaces the provisions in the Fishery (General) Regulations and in certain federal fisheries regulations that apply to fisheries managed by provinces that have been delegated fisheries management responsibilities, which set out the requirements for providing notice to individuals likely to be affected by Variation Orders.

FISHERIES MANAGEMENT ORDERS PREVAIL OVER LICENCE CONDITIONS

Provisions of a new Act make it clear that in cases where there is an inconsistency between a fisheries management order and licence conditions, the fisheries management order prevails, to the extent of the inconsistency. The interpretive provision clarifies that a fisheries management order issued in season, for example for conservation reasons, would negate or restrict a licence condition in a licence issued at the start of the season.